President Edgar Lungu is Not Eligible to Stand in 2021: Here is why

“A person who has twice held office as President,” states Article 106(3) of Zambia’s Constitution 2016, “is not eligible for election as President.” However, Article 106 (6) further explains that a Vice-President, or another person who assumes the presidency due to a by-election, will not be deemed to have held office if they have served as President for less than 3 years before the date of the next general election.

The question Zambians are facing right now is whether President Edgar Chagwa Lungu qualifies to stand in 2021. President Edgar Lungu was first sworn into office in January 2015 after winning a presidential by-election to replace a dead incumbent Mr. Michael Chilufya Sata. Lungu was re-elected in August 2016 after general elections. In 2015 when he first ran for office, Zambia was under Constitution 1996. However, in January 2016, Zambia adopted an amended constitution with the provisions explained above. The question is how would this apply to President Lungu.

President Lungu and his supporters claim that Constitution 2016 allows him to stand again in 2021. However, as stated above, Article 106(3) cannot be any clearer: “A person who has twice held office as President is not eligible for election as President.”

We submit that President Lungu has “twice held office”. The first was in January 2015, and the second was in September 2016, after the August 2016 elections. Article 106(2) states as follows: “A President shall hold office from the date the President-elect is sworn into office and ending on the date the next President-elect is sworn into office.”

On 25th January 2015, Mr Lungu was sworn-in as President. He “held office” until the next swearing-in ceremony on 13th September 2016 when as “next President-elect”, he was sworn in for a second time. Thus, He is currently “holding office” for the second time until the next swearing in ceremony in 2021.

Some Lungu supporters claim that his first term does not count because of Article 106(6) which states that for the purposes of Article 106(3), a term of office is only counted if it is at least three years long. Since Mr Lungu’s first term was less than three years, they say we must discount it. This argument fails on two counts.

The “three-year rule” only came in effect in 2016 and you cannot apply the law to previous events unless it is explicitly stated in the law itself. For example, before 2016, there was no provision for 50%+1 to determine the election winner. If we applied the law retroactively, it would mean Mr Lungu never won the 2015 elections since he never went over half the votes cast. Another example is the Grade 12 certificate requirement. The fact that it is now required for a candidate to stand as president does not mean the previous elections that were held without G12 certificates are invalid.

The three-year rule fails because if we apply it to President Lungu, he does not even qualify because it can only be applied to a Vice-President who was elected as a Running Mate and then took over after a vacancy in the President’s office. Mr Lungu was never a Vice-President. Article 106(6) refers to Article 106(5)(a) and (b) when mentioning the three-year rule and President Lungu never took office under either of the two situations mentioned in Article 106(5).

If we followed, Article 106(5), only Dr. Guy Scott, who is now eligible to stand as Zambian President, would possibly qualify. As a side issue though, it is interesting to note that Dr. Scott actually never “held office” since he was never sworn-in as President, even though he performed the Executive functions of the President’s office. Similarly, during the three months after the death of President Levy Mwanawasa, Dr. Rupiah Banda never “held office”.

Another argument by Lungu supporters is that the Constitution 2016 reset the clock and everything is started afresh, including counting of terms of office previously held. This fails because there is no provision in the Constitution 2016 that says that previous terms of office under the earlier Constitution are not counted. The critical phrase in the Constitution is “twice held office”.

The definition of “holding office” has not changed since the 1991 Constitution to date. Constitution 1996 in Article 34(9) and (10) stated as follows:

A person elected as President under this Article shall be sworn in and assume office immediately but not later than twenty-four hours from the time of declaring the election. The person who has held office of President shall immediately hand over the office of President to the person elected as President and shall complete the procedural and administrative handing over process within fourteen days from the date the person elected as President is sworn in.

Thus, it is very clear that being sworn-in is what constitutes the beginning of “holding office” with respect to Article 106(3) in the 2016 Constitution and this also applied previously. Mr Lungu has been sworn-in twice and as per Article 106(3), he will have “twice held office” by 2021.

The logical end of the arguments advanced by President Lungu’s third term supporters would mean that if the late President Fredrick Chiluba were alive today, then even he could contest again. The argument could extend further to Dr. Kenneth Kaunda as well. If everything has started on a clean slate there is no stopping Kaunda or Chiluba. Further, if this third term argument held, then Dr. Rupiah Banda might claim two more terms, since he too served for less than the proverbial 3 years. We doubt if the Lungu argument makes any sense at all.

We also note that in January 2016, there were two acts of Parliament that ushered in Constitution 2016. Constitution Act No. 1 provided for the transition between the two Constitutional eras (Constitution 1991 and Constitution 2016) while Constitution Act No. 2 contains the actual text of the 2016 amendments to the Constitution. To provide for the transition, Act No. 1 stated that, “the President shall continue to serve as President for the unexpired term of that office as specified by the Constitution in accordance with the Constitution.” This provision confirms our view that the 2016 Constitution (assented to on 5th January 2016) recognizes the first term of office held by Mr Lungu that was already running from January 2015.

We understand that President Lungu and his supporters are talking of taking this matter to the Constitutional Court. We believe that step is unnecessary in view of the circumstances. We do hope to continue participating in this dialogue.

Michael Chishala (michaelchishala.com) is an entrepreneur and web developer based in Lusaka, Zambia. Trained as an engineer at the University of Manchester in England, his multifaceted interests include: philosophy, economics, politics, theoretical physics, architecture, music, and the arts.

Elias Munshya (eliasmunshya.org) is a Zambian based in Calgary, Alberta where he practices civil litigation, administrative and human rights law. He holds graduate degrees in theology, counselling, law and business administration.

The Presidency is a person as an institution and it is divorced from the individual. If it’s agent dies while it’s mandate is in effect the institution (Leviathan) lives on regardless who is brought on board to conclude its mandate. It outlives it’s agents if they die while its mandate is in effect. Says died but the person of the institution Presidency lives on in its social contract mandate with the people) the Law and the constitution. So I put it to you that Sata died but that did not rob the institution of the presidency the privilege it enjoys to live on without prejudice. Therefore EL finished the Sata Presidency for the remaining two years. At its end when it clocked 10 years the mandate it secured under Sata expired and it was given a new 2 term 5 year mandate ie 10 years.

You cannot use the “Transition Provisions” of a law as the main clauses of that law. Transition provisions are usually put in place in order to avoid a power vacuum during the intervening period from one “legal regime” to another.

The way I see it, Chagwa Agwa cannot be interpreted as having “held office” when serving the remainder of his unexpired term because he was merely follow ing the transition provisions.

In other words, Chagwa was a “Caretaker President” leading a “Caretaker Government” in transition from one Constitutional Jurisdiction to another. Which means, as of the effective date of the amended Constitution, since Chagwa was never “sworn in” on or after that date, we can conclude that he actually never held office under the amended Constitution (although he did under the old one) and therefore is eligible to stand.

Notwithstanding its eloquence and notable legal logic, this explanation (i.e. your article) is not necessarily any “clearer.” It appears to fit someone’s pre-concluded position and hence tends to contradict itself.

To quote your own article: “…You cannot apply the law to previous events unless it is explicitly stated in the law itself…”

There is nothing in the amended constitution that explicitly states that the emended constitution can be applied to events before it’s effective date. You therefore cannot choose to apply parts of the constitution selectively to matters that fit your liking.

Thus, I believe all of Chagwa Agwa, Chiluba (MHSRIP), Rupiah and Kaunda are eligible, under the new Constitution.